U.S. copyright laws can be used to protect the integrity of your tests and keep your exam from being copied. And when your exam content winds up online, the U.S. Copyright laws can also be used to remove that content from infringing web sites. Kenneth Horton, from the law firm of Kirton and McConkie, discussed key issues on this important topic. With a technical degree, a business degree (MBA), and a legal degree, Ken provides a multi-disciplinary approach to intellectual property services. These services are enhanced by his constant research into both the legal and strategic aspects of intellectual property required by his teaching position as an associate professor in IP Strategy. Ken exhibits an entrepreneurial flair through investing in—and consulting with—technology-focused companies. Ken was joined by Senior Web Patroller for Caveon, Cary Straw, who shared other aspects of finding infringing content online.

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4. “Protecting Your Tests Using Copyright Law”
Caveon Webinar Series:
Cary Straw
Senior Web Patrol Security Analyst
Caveon Test Security
Kenneth E. Horton
Associate Professor, IP Strategy
Gore School of Business
Westminster College
June 19, 2013

5. The Real Threat to your Tests
“An internet search of free braindump
sites was conducted and “at least
part of the item bank was found to be
compromised as early as 3 weeks
after the live release and almost
entirely exposed, with great
accuracy, after 8 months.”

6. Intentional Theft and Blatant Infringement
There are 1000’s of websites that steal your test
questions and sell them for profit.
And, it only gets worse…
these websites are very incestuous.

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Dumps4paper.com
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8. Not all instances of Copyright
Infringement are intentional
• Homework Help Sites
• Project and Freelancers
• Forums
• Auction Sites – eBay, Craigslist
• Facebook

9. Excerpt from an actual Terms of Use Agreement
―You are not allowed to and agree not to use any of
the solutions, answers, materials or information
available on or through the website, whether in whole
or part, to cheat. Examples include:
• Submitting any textbook solutions from the
Website as your own to any class…
• Any other violation of your instructor's or school's
academic honor code….‖

10. Create Allies and Work as a Team
• Start warm and friendly
• Build relationships with forum owners
• Send a Bystander
• Send Cease and Desist Letter
• Do not seek revenge, Stay professional

11. Protecting Your Tests Using Copyright Law
Kenneth E. Horton
Associate Professor, IP Strategy
Gore School of Business
Westminster College
Salt Lake City, Utah

12. Questions Answered
• What is a copyright?
• What materials can be protected?
• What rights are granted from a copyright?
• How do I get, maintain and protect a copyright?
• How do I enforce my rights?

13. Copyrights
Subject Matter
• Author’s original expression of idea in tangible
medium of expression (e.g., drawings, musical
scores, sculptures, software code, etc.).

14. Copyrights
Categories of Works
• Broadly interpreted, but specifically includes
– Literary Works
– Musical Works
– Dramatic Works
– Pictorial, Graphic and Sculptural Works
– Audiovisual Works

15. Copyrights
Categories of Works
– Compilation -- Work formed by selection,
assembly, and arrangement of pre-existing
materials, facts, or data.
– Collective Work -- A work in which a number of
contributions, constituting separate and
independent works, whether or not in the public
domain, are collected.
– Derivative Work -- Work based upon one or
more pre-existing works.

16. Copyrights
Originality
• Copyright subsists only in original works of
authorship.
• Originality liberally interpreted -- Work need only
originate from author and not copied from another’s
work.
– Even if identical work, entitled to copyright protection as
long as it was independently created.
– The work need not have literary or artistic value or quality
(subjective standard avoided).

17. Copyrights
Ideas versus Expression
• Ideas are not copyrightable.
• Expression of ideas is copyrightable.
• Rationale: Copyright laws will not give monopoly
on ideas/scientific principles which could impair
cultural or scientific development.

18. Copyrights
Facts and Data
• Facts (historical or contemporary news) and data
(calculations) are not copyrightable. However, the
manner of reporting the facts and the selection and
arrangement of data are protectable.
• Rationale: To be protectable, a work must be
original (i.e., originate in author). The discoverer of
facts or data merely finds and records, but does
not create.

19. Copyrights
Tangible Medium of Expression
• Work must be fixed in a tangible form which is
sufficiently stable and permanent to permit the
work to be perceived, reproduced, or otherwise
communicated for a period of more than transitory
duration.

20. Copyrights
Subject Matter
• Not Protected is
– Symbols, designs, ornamentation,
…(generally things that can be trademarked)
– Ideas, procedures,
… (generally things that are patentable)
– Facts/data (as described above)

21. Copyrights
Length
• Life of Author + 70 years
• Critical Information when term of copyright starts
– When created
– When published
• Transition date: 1/1/78

22. Copyrights
Rights Granted
• Depends on type or work, but specifically includes:
– Reproduction Right-- reproduce copyrighted work in
virtually all mediums of expression.
– Distribution Right -- distribute reproductions of the work by
sale, lease, loan, etc.
– Performance Right – right to perform work publicly
– Display Right – right to display work publicly

23. Copyrights
Rights Granted: Limitations
• Fair Use, but not commercial use, for
– Criticism
– News reporting
– Teaching
– Scholarship
– Research

24. Copyrights
Ownership
• General Rule -- Initial copyright vests in
creator/author(s).
• One claiming copyright must either be
creator/author or owner by assignment.
• Owner v. possessor

25. Copyrights
Ownership (continued)
• Joint Works -- Work created by two or more
persons, each having equal, undivided interest in
work.
• Work Made for Hire -- The employer or
commissioning party is considered the author
provided this is made clear to the author.

26. Copyrights
Acquisition
• Acquired automatically on creation
• Tangible medium depends on the type of work
• No publication or registration is required, but can
be advantageous

27. Copyright
Publication
• Publication: Tangible copies of work sold, leased,
given away or otherwise made available to general
public.
• Publication previously—but no longer— required
for obtaining federal copyright
– Advantages remain though for publishing your
work

28. Copyrights
Notice of Publication
• Optional
• Place all published works to avoid
certain defenses to infringement
• Three elements
– Symbol ―©‖, ―(C)‖,‖COPR.‖ or
―COPYRIGHT‖;
– Year the work was first published; and
– Name of copyright owner.

29. Copyrights
Registration
• Optional
• Statutory advantages
– Presumption of ownership
– Statutory damages (up to $30,000 per infringing act)
• Prerequisite to filing suit against alleged infringer
• Recommendation -- Register within 3 months of
first publication to preserve all rights

30. Copyrights
Registration
• Filing Requirements
– Application
– Deposit
– Fee
• Examination only considers
– Originality
– ―fixed‖
– Proper subject matter

31. Copyrights
Enforcement
• Elements of Infringement
– Establish ownership
– Proof of Copying
• Direct v. Indirect Proof
• Indirect Proof of Copying
– Access
– Substantial Similarity
– Sliding Scale

32. Copyrights
Enforcement
• Remedies
– Injunctions
– Impounding of Copies
– $$$$$$$$$
• Actual
• Statutory: 0.75 to 30K per act of
infringement, at the discretion of the Court
– Increased damages (i.e., willful infringement)

33. Copyrights
Enforcement
• Criminal Offenses: becoming more important tool
with online piracy
• Indirect Infringement
– Right and ability to control infringer’s acts
– Receives a financial benefit from the
infringement
– Knowledge is not necessary

34. Copyrights
DMCA
• DMCA: provides safe harbors for online content
providers if they:
– Store material at request of user;
– Are merely Referring users to online locations where
material is located; or
– Only store the infringing material by system caching.
– In other words, they are intermediary and store material
while serving as a conduit.
– Modifications proposed (but not enacted) in 2011/2012 to
give more power to copyright owners

35. Copyrights
Internet
• Eligibility for DMCA
– Adopt, implement, and inform its subscribers of
policy for terminating repeat infringers.
– Must accommodate and not interfere with
"standard" measures to identify and protect
copyrighted works.
– Need NOT monitor or affirmatively seek out
copyright infringement , except as part of the
standard technical measures.
– Need NOT have to access, remove, or block
material if such action is prohibited by law.

36. DMCA Take Down Notice
1. Identify copyrighted work(s).
2. Identify infringing material with sufficient detail.
3. Sufficient Contact Information
4. Certify copyright owner or agent.
5. Find and send notification to the service provider
(if needed by ―Whois‖ search).

37. Copyrights
International Considerations
• Protection limited to each country
• Enforcement also limited to each country
• Seeking protection becomes a matter of cost v.
benefit analysis
• Enforcing rights also becomes a cost v. benefit
analysis

38. Copyrights
Take Aways
• Legal avenues are limited because of logistics and
cost.
• Ask nicely first, then ask nicely
• When possible, form a cooperative relationship
• When not, hit hard and hit fast (to keep material out
of circulation)

39. Options for Delivery of Notification
• DMCA – Digital Millennium Copyright Act
• Bystander Letter

40. Removal Success
using Bystander/DMCA Notifications

41. Final Thoughts
• Monitor the web for evidence of potential
infringement
• Infringement may be found on braindump sites,
portals, forums as well as typical websites
• Attempt to build friendly relationships with site and
forum operators
• Support further necessary investigation with the
appropriate takedown notifications

42. THANK YOU!
- Follow Caveon on twitter @caveon
- Check out our blog www.caveon.com/blog
- LinkedIn Group ―Caveon Test Security‖
Cary Straw
Senior Web Patrol Security Analyst
Caveon Test Security
Kenneth E. Horton
Associate Professor, IP Strategy
Gore School of Business
Westminster College